Manish Soni vs The State (Govt. Of Nct) Delhi
2013 Latest Caselaw 1179 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   RESERVED ON : 13th February, 2013
                                   DECIDED ON : 8th March, 2013

+                             CRL.A. 1008/2012

      MANISH SONI                                      ....Appellant
               Through :           Mr.Chetan Lokur, Advocate.

                                   versus

      THE STATE (GOVT. OF NCT) DELHI         ....Respondent
               Through : Mr.M.N.Dudeja, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant- Manish Soni challenges correctness of

judgment dated 21.09.2011 and order on sentence dated 29.09.2011 in

Sessions Case No. 09/2010 arising out of FIR No. 738/2007 PS

Connaught Place by which he was held guilty for committing offences

under Sections 328/379 IPC and sentenced to undergo RI for five years

with total fine ` 30,000/-.

2. Allegations against the accused were that on 30.10.2007 at

05.30 P.M at Volga Restaurant, he and Co-Convict Sachin Gandhi

administered some intoxicant substance to victim/ complainant- Chambak

Vasu Dinesh and Rajesh Kalidass and deprived them of gold chain,

locket, gold bracelet, cash ` 3,500/-, mobile phone, key of car, driving

licence, PAN card and ABN-Amro bank credit card. It was also alleged

that from 01.10.2007 to 15.01.2008, they dishonestly purchased two

mobile phones using stolen credit card. Somesh Dua was arrested and

challaned for committing offence punishable under Section 411 IPC being

in possession of 10 gold chains, 3 bracelets, 2 karas, 2 gold rings knowing

or having reasons to believe the same to be stolen property. The

prosecution examined eight witnesses to prove the charges. In their 313

Cr.P.C. statements, the accused did not deny the incriminating

circumstance proved against them. On appreciating the evidence and

considering the rival contentions of the parties, the Trial Court, by the

impugned judgment, held the appellant and his associate Sachin Gandhi

guilty for committing offences punishable under Sections 328/379 IPC

and sentenced them. Being aggrieved, the appellant has preferred the

appeal. It is relevant to note that co-accused Somesh Dua compounded the

offence under Section 411 IPC with the complainant and was acquitted

vide order dated 18.02.2011.

3. Learned counsel for the appellant urged that the Trial Court

did not appreciate the evidence in its true and proper perspective. The

prosecution could not establish what poisonous substance was

administered to the complainant. No evidence was collected from

Moolchand Hospital where the complainant was taken and admitted.

Counsel highlighted discrepancies and contradictions in the statements of

material witnesses PW-2 (Chambak Vasu Dinesh), PW-3 (Rajesh

Kalidass) and PW-5 (Biju Kumar) to emphasize that they gave

inconsistent version as to how the complainant was taken to Moolchand

Hospital or Police Station Mandir Marg. They claimed that their friend

Jobi reached the spot but the prosecution did not cite him a witness and he

was not examined. The prosecution did not offer plausible explanation for

inordinate delay in lodging the First Information Report. The Trial Court

fell into grave error in putting questions under Section 313 Cr.P.C. to both

the accused mechanically. The witnesses made vital improvements in their

deposition in the Court. Learned APP urged that PW-2 and PW-3 had no

ulterior motive to falsely implicate the accused. In their 313 Cr.P.C.

statements, the accused admitted his guilt.

4. I have considered the submissions of the parties and have

examined the record. To find out the guilt of the appellant, testimony of

PW-2 (Chambak Vasu Dinesh) is very crucial. He deposed that on

24.08.2007 when he was going to Trivendrum with his family, Manish

Soni and Sachind Gandhi met them and introduced themselves as Raju

and Rakesh. During discussion at IGI Domestic Airport, the accused took

his mobile number. On 26.08.2007 and 04.09.2007 he was contacted on

his mobile phone by the accused and was asked to meet him for business

purpose but he declined. On 30.10.2007 at 05.30 P.M., the accused called

him in Volga Restaurant, Connaught Place for business deal on his

mobile. He told him that two customers would come for deal. He with his

cousin Rajesh Kalidass went to Volga Restaurant in his Wagon R car

bearing No.DL3CAW-0252. Both the accused met him in Volga

Restaurant. They consumed beer and chicken. The accused after receiving

a telephone call on his mobile told him that customers would come at

Nirulas Restaurant. Thereafter, they all went to Nirulas Restaurant,

Connaught Place. He and his cousin kept on sitting in the vehicle in wait

for the customers. He further deposed that the accused brought four glass

juice from Nirulas and offered them. After consuming juice, he started

feeling giddy. He requested his cousin to take him to the hospital. Rajesh

Kalidass called his friend. Thereafter, he became unconscious. After three

days, when he regained consciousness, he found himself in Moolchand

Hospital. He found that his gold chain, locket, bracelet, cash ` 3,500/-,

registration certificate of the vehicle, duplicate key, PAN card, two credit

cards and Soni mobile phone were missing. He also came to know

purchases for ` 38,000/- made by using his credit card. After discharge

from the hospital, he decided not to file any criminal case. On 24.12.2007

at 02.00 A.M. some officials from CBI came to search his house. They

disclosed that they had got call from his mobile. He narrated the incident

to ACP Rajbir Singh and on 25.12.2007 his statement (Ex.PW-2/A)

recorded. He identified the stolen articles in the Court. The accused did

not cross-examine the witness despite an opportunity given. The PW-2's

testimony on material facts remained unchallenged and uncontroverted.

PW-3 (Rajesh Kalidass) corroborated PW-2's version in its entirety. He

also identified Manish Soni and Sachin Gandhi who had met them in

Volga Restaurant. He also deposed that after the accused brought juice

from Nirulas Restaurant, Chambak Vasu Dinesh complained that he was

not feeling well. He made telephone call to his friend Jobi. The

complainant was treated at Moolchand Hospital. The accused did not opt

to cross-examine him also. PW-5 (Biju Kumar) deposed that the vehicle

Wagon R was found parked underneath a tree near Birla Mandir. He saw

complainant Dinesh lying unconscious on the backseat of that vehicle.

The vehicle was brought to the Police Station and from there he took his

friend Dinesh to Moolchand Hospital and admitted him there. His

testimony remained unchallenged in the cross-examination.

5. On scrutinising the testimony of PW-2 and PW-3, it reveals

that they identified both Manish Soni and Sachin Gandhi to whom they

met on 30.10.2007 at 05.30 P.M at Volga Restaurant. From there, they

were taken to Nirulas Restaurant and juice was offered. It also transpires

that after consuming juice, the complainant started feeling giddy and was

taken to Moolchand Hospital. Complainant found that cash and other

articles were stolen. Complainant identified these articles in the Test

Identification Proceedings conducted during investigation. All these

articles were also recognised by him in the Court. Their statements

remained unchallenged and uncontroverted. No ulterior move was

assigned to them for falsely implicating the accused in the incident.

6. It is true that there is delay in lodging the First Information

Report. However, the complainant has given plausible and reasonable

explanation for delay. He stated that after discharge from the hospital, he

had consultation with his family members and they decided not to lodge

any criminal proceedings. When he was contacted by CBI Officers, he

recorded his statement (Ex.PW-2/A). The very fact that the complainant

did not opt to initiate criminal proceedings shows that he was nurturing no

grudge against the accused. It makes him trustworthy and reliable witness.

He had no ulterior move to fake the incident and to get himself admitted

in Moolchand Hospital.

7. Both the accused were arrested by CBI. From the disclosure

statements made by them, their involvement in the present case surfaced.

Number of other cases involving the accused were worked-out. The

articles recovered at the instance of the accused were shown to the

complainant and were identified by him in the Test Identification

Proceedings. The police was able to recover stolen articles belonging to

the complainant from the possession of Somesh Dua who opted to

compound the offence. Recovery of the stolen articles at the instance of

the accused is an incriminating circumstance against him.

8. The incriminating circumstances proved against the accused

were put to him. In his 313 Cr.P.C. statement, the accused did not deny

the incriminating circumstances and admitted that he had acquaintance

with the complainant and had called him at Volga Restaurant. He further

admitted that he mixed Larpost, a sedative, in the chicken curry and

served to the complainant. He drove Wagon R vehicle to Lady Harding

Medical College and when PW-2 went to find out emergency, he drove

away the vehicle and brought it in Mandir Marg area. He further admitted

that he had stolen a gold chain with locket, a bracelet, RC of the vehicle,

duplicate key of the vehicle and Sony mobile phone. He denied to have

stolen cash ` 3,500/- and two credit cards. He explained that the cash

stolen was ` 400/- and only one bank credit card was removed from the

complainant. He also admitted that he bought two mobile phones by using

the credit card. Other incriminating circumstances put to him were not

denied. He admitted his guilt and prayed for leniency as he had already

remained in custody for 44 months.

9. Taking into consideration, the unchallenged testimony of

PW-2 and PW-3 coupled with admission of guilt in 313 Cr.P.C. statement,

in my considered view, the prosecution was able to establish the guilt of

the accused beyond reasonable doubt. Contradictions and discrepancies

highlighted by the counsel are in-consequential due to confession of guilt.

Conviction of the appellant under Section 328/379 IPC needs no

interference as it is based upon cogent appraisal of the evidence. The

appellant has already served the sentence awarded to him. The appellant

was sentenced to undergo RI for five years with total fine ` 30,000/-.

Nominal roll reveals that as on 15.09.2012, the appellant had already

undergone 4 years, 8 months and 12 days incarceration. He earned

remission for 3 months and 18 days. It further reveals that after the

completion of the substantive sentence on 13.09.2012, fine sentence

would start after completion of all substantive sentences in the cases

detailed in annexure 'A'. Annexure 'A' reveals that the appellant was

convicted in 15 different cases and was awarded substantive sentences

with fine.

10. In the light of above discussion, the appeal lacks merits and

is dismissed. Conviction and sentence of the appellant are maintained.

11. The Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE 08 MARCH, 2013 tr